On November 21, 2009, the Desert News published Jonathan Gurwitz’s editorial, titled, “Obama’s duel system of justice is bizarre.” His essay is another example of the ignorant, fear-generated hysteria that arises whenever we seek to bring to justice those who commit unspeakable atrocities. This highlights the failure of legal scholars and our educational system to instill within the American public an understanding and respect for our system of justice. This is no easy task. When we are confronted by humans who murder in cold blood, on a gut level, it is hard to resist our inclination to resort to cursory legal processes, vigilantism and summary executions.
Under such situations, most, like Jonathan Gurwitz, ask: why should criminals, especially those who, “flagrantly violate the laws of war,” and are “mass murderers” have a right to the same justice system that is “constitutionally guaranteed to the citizens” of the United States? Mr. Gurwitz further suggests that to try alleged terrorists in our federal courts will grant them, “far greater rights — and,” will place, “far greater burdens on the prosecution,” then they deserve.
This sounds so emotionally attractive in the abstract, but what is he talking about? What rights should human beings be stripped of and when? Should prosecutors not bare the burden of proving a human being’s guilt? Should human beings, based upon accusations, be deemed guilty and summarily executed?
Mr. Gurwitz goes on to suggest that the Geneva Conventions and the U.S. Constitution were not designed to encapsulate universal rights but to create privileges to be earned or obtained through the royal birthright of U.S. citizenship. This, however, is where he and many others falter and then wallow in the mire of our most base human proclivities.
The Geneva Conventions were not promulgated as a model of human civility. They were an attempt by the then participating international community to bring a small measure of watered-down civility, to an uncivil, institutionalized human-atrocity: war. They only created minimum standards of conduct that could be agreed upon by many nations and followed even by countries less advanced and progressive than our own. The United States was a signatory thereof only in hopes that some of the excesses and consequences of war could be ameliorated and thereby not experienced in future conflicts by our citizens and soldiers. They were never meant to be a standard and beacon of appropriate behavior and civility. It was therefore unfortunate that the late Bush administration saw the Geneva Conventions as an impediment that had to be disregarded through legalistic distortions and the redefinition of torture into euphemisms. In fact, it is frightening to imagine what atrocities would have been committed by the Bush administration, in our name, had they and other laws not existed all together.
Contrastingly, the U.S. Constitution was crafted by our founding forefathers, not as a screed of transient guidelines only peculiar to the inhabitants within our borders, but as a declaration of universal and inviolate principles that all nations, peoples and communities should embrace and adhere to--not with begrudging indifference, but with exuberant alacrity. In fact, as a nation, we have often engaged in foreign wars with the very purpose of extolling and implementing these universal principles abroad. Why then do intellectuals such as Mr. Gurwitz and leaders such as the late President Bush seek to impose their own, bizarre duel systems of thought by reasoning that U.S. Citizens should only be entitled to these universal rights while all others as lesser human beings are only entitled to our baser instincts? Applying this bizarre, Mr. Gurwitz argues that these lesser humans should be tried only in military tribunals. He justifies this analysis by claiming that it is no less than what would be done by Presidents George Washington, Abraham Lincoln and Franklin Roosevelt.
Aside from the inaccuracy and inapplicability of this historical over-generalization, the problem is that most military tribunals are inherently unfair. Why? Because military tribunals lack many of the universal hallmarks of a fair criminal justice system as embodied in our constitution. These hallmarks were acknowledged and made law by Thomas Jefferson because we are fallible and prone to our worst reactive natures. A few of the indispensable components of this system are: (1) the right to be deemed innocent until proven guilty in a court of law by proof beyond a reasonable doubt, (2) the right against self-incrimination, (3) the right for to a trial by an independent adjudicator, (4) the right to representation, (5) the right to confront and call witnesses, and (6) the right to secure and access evidence.
Military Tribunals often do not contain these hallmarks. In fact, Military Tribunals are akin to appointing the victims or of a crime or their close relatives to conduct the investigation, apprehension, trial and sentencing of the alleged perpetrator--a process that although it would be emotionally satisfying for the victims, is, for obvious reasons, fraught with peril and the potential for abuse and injustice.
In conclusion, the civil rights that are distilled and made incarnate within the U.S. Constitution are not blessings to be bestowed upon only those deemed worthy by the “High Priests” of this nation, whether they be Mr. Gurwitz, Presidents, Justices, Professors, Pundits or victims. They are not convenient benefits that must be obtained by purchase, birthright, baptism, or even proper behavior-- they are universal human rights. That is why, as a civilized nation and standard bearer to the world, we should even extend to those who, “flagrantly violate the laws of war,” and are “mass murderers” the same rights that are “constitutionally guaranteed to [our] citizens (i.e., even Timothy McVeigh).”
In so doing, at the end of the day, implementing the principles of the U.S. Constitution in our retribution against even those we accuse of terrorism, does not, as argued by Mr. Gurwitz, “compromise vital intelligence,” “give terrorists battlefield Miranda rights,” “handcuff U.S. prosecutors in evidentiary proceedings,” nor “put the United States and, especially, the policies of the Bush administration on trial.” To the contrary, it reinforces our sacred belief in the phrase that some think Thomas Jefferson and Benjamin Franklin wrested from the mouth of God--and that is this: “We hold these Truths to be self evident, that all [Human Beings] are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” When this inspired phrase is no longer the guiding creed for our thoughts and actions, we will be no better than the terrorists we are seeking to condemn.
Loren M. Lambert, Midvale Utah
© November 22, 2009
